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Patient form ‘opened the door’ to Medicare inquiry

A plaintiff’s introduction of a nursing home patient’s status report in a government form allowed the lawyer defending the nursing home to tell the jury that the patient’s bills were paid by Medicare.

The “Minimum Data Set” assessment for Medicare patients came into play when the family of Florence Ayers sued The Springs Nursing Center for wrongful death. Ayers suffered fractured ribs and a lacerated spleen when a nursing home employee operated a Hoyer lift to transfer Ayers from her bed to a wheelchair.

Prior to trial, the Bath County Circuit Court granted the plaintiff’s motion in limine to exclude reference to any collateral sources of funds, including health insurance, Medicare and Medicaid or other “write-offs” or “write-downs.”

At trial, nursing home employee Rhonda Plumley testified that nursing facilities conduct MDS assessments, which are used to certify a patient is receiving “appropriate and quality care” in order to obtain payment, and as an internal tool. The MDS report plaintiff entered into evidence stated the nursing home was being paid for by “Medicaid per diem.”

On cross-examination, the lawyer for defendant AFS of Hot Springs Inc. asked Plumley leading questions about whether the nursing home would be “paid under Medicare unless [the form] is submitted,” and whether “all of her medical bills were being paid for by the federal government correct?”

When the plaintiff’s lawyer objected, the trial court said it understood the plaintiff’s lawyer was going through the form “line by line, so that when she gets to her closing, she can say they certified, they had to certify, that this was her condition on July 10, when she got there. She didn’t have this, she didn’t have that, and look where we are after you-all had dropped her.”

The court refused to declare a mistrial, and said it could instruct the jury to ignore references to Medicare or Medicaid, but “it’s a two-edged sword” that could just draw more attention to the issue. The nursing home’s lawyer agreed not to mention the subject in closing argument.

The plaintiff won the case, but the jury awarded $75,000, when the suit claimed damages of $148,219. The judge refused to set aside the verdict, and the Supreme Court of Virginia upheld that decision in an unpublished order released on Nov. 21.

Based on the questions plaintiff’s counsel asked Plumley about the MDS sheet and the entry of an unredacted sheet into evidence, the nursing home lawyer “could have reasonably believed that lead counsel had opened the door to questions on collateral source funding,” the high court said.

Ayers could not show prejudice, the court said in Ayers, Adm’r v. AFS of Hot Springs Inc. It was clear the trial court considered the probable effect of the reference and gauged the reaction or lack thereof by the jurors and concluded that AFS’ question was not so egregious and not likely to be a focal point for the jury.

Justice LeRoy F. Millette Jr. and Senior Justice Lawrence L. Koontz Jr. dissented without comment.

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